Judgment final.

- A judgment which provides for the control of the surplus of the funds under O.C.G.A. § 44-14-238 is a final judgment. Miller Serv., Inc. v. Miller, 77 Ga. App. 413, 48 S.E.2d 761 (1948).

Control over surplus.

- Under O.C.G.A. § 44-14-238, the court will control the surplus so as to protect the lien created for the debts or installments not due. The court may order the part which is in judgment to be paid, and the balance to be invested to meet the indebtedness still unpaid. Hatcher v. Chancey, 71 Ga. 689 (1883). See also McCurry v. Pitner, 159 Ga. 807, 126 S.E. 781 (1925).

Equitable relief.

- Under O.C.G.A. § 44-14-238 where partial payments were made on the first two installments, but nothing was paid on the third, and the purchaser was wholly unable to pay for the land, the vendor might, by equitable proceedings, obtain judgment for the indebtedness, and a decree ordering the sale of the land and providing that, if, after paying the installments due, there should remain a surplus, the sheriff should return it to satisfy the installment thereafter to become due. If the debtor be insolvent, this could be done as well where title was retained as security as where a mortgage is taken for that purpose. Littleton v. Spell, 77 Ga. 227, 2 S.E. 935 (1887).

Notes payable in specifics.

- It makes no difference, under O.C.G.A. § 44-14-238, that notes, to secure which the mortgage was given, are payable in specifics. Hatcher v. Chancey, 71 Ga. 689 (1883).

Separate notes for interest.

- A mortgage to secure a promissory note for a stated amount of principal, and separate notes maturing at different times for the interest to accrue thereon, cannot, in advance of the maturity of the principal note, unless specially so stipulated, be absolutely foreclosed for the full amount of the principal and the matured interest notes, and the collection thereof summarily enforced by a process amounting to no more than an ordinary mortgage execution. In such a case the remedy provided by O.C.G.A. § 44-14-238 is available. Cumberland Island Co. v. Bunkley, 108 Ga. 756, 33 S.E. 183 (1899).

Mortgage by tenants in common.

- When a mortgage was executed by two tenants in common, it may be foreclosed against one as to that tenant's interest. Baker v. Shepherd, 37 Ga. 12 (1867).

Where two give a lien on their separate interests in the same property to a common creditor, the mortgage may be foreclosed separately against each. Baker v. Shephard, 30 Ga. 706 (1860).

Security notes passed to several holders.

- A mortgage having been made to secure several negotiable notes, and the notes having been passed to several different holders, and one of the holders having obtained a general judgment, and another having foreclosed the mortgage in the name of the mortgagee for use, a sale of the premises under the general judgment passed the title free from the mortgage lien. The notes not covered by either judgment cannot be enforced against the land, but are thrown, in equity, upon the fund produced by the sale, for their pro rata share thereof. Smith v. Bowne, 60 Ga. 484 (1878).

Cited in Jones v. Lawrence, 18 Ga. 277 (1855); Lawrence v. Jones, 20 Ga. 342 (1856); Lathrop & Co. v. Brown, 65 Ga. 312 (1880); Paul v. Roney, 94 Ga. 133, 21 S.E. 283 (1894).

Am. Jur. 2d.

- 69 Am. Jur. 2d, Secured Transactions, §§ 557, 572, 590-606, 734-736.

C.J.S.

- 14 C.J.S., Chattel Mortgages, §§ 183, 360.

ALR.

- Validity, construction, and application of insecurity clause in chattel mortgage, 125 A.L.R. 313.

Excess of payment for one period as applicable to subsequent period under contract or mortgage providing for periodic payments, 89 A.L.R.3d 947.